Amicus Curiae Brief — VBS Distribution, Inc., et al., Petitioners v. Nutrivita Laboratories, Inc., et al.

NO. 20-220

In the

Supreme Court of the United States

________________

VBS DISTRIBUTION, INC., a California corporation,

also known as VBS HOME SHOPPING, and VBS

TELEVISION, INC., a California corporation

v.

Petitioners,

NUTRIVITA LABORATORIES, INC.,

a California corporation, et al.,

Respondents.

________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF FOR ERWIN

CHEMERINSKY AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

________________

W. Scott Cameron

Anne M. Voigts

Matthew V.H. Noller

Counsel of Record

KING & SPALDING LLP KING & SPALDING LLP

621 Capitol Mall

601 South California Ave.

Suite 1500

Suite 100

Sacramento, CA 95814

Palo Alto, CA 94304

(916) 321-4800

(650) 422-6700

scameron@kslaw.com

avoigts@kslaw.com

mnoller@kslaw.com

Counsel for Amicus Curiae

(Additional counsel listed on inside cover)

September 24, 2020

Jill R. Carvalho

KING & SPALDING LLP

500 W. 2nd Street

Suite 1800

Austin, TX 78701

(512) 457-2021

jcarvalho@kslaw.com

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

IN SUPPORT OF THE PETITION

Pursuant to Rule 37.2(b), Dean Erwin

Chemerinsky, in his individual capacity, respectfully

requests leave to submit a brief as amicus curiae in

support of the petition for writ of certiorari filed by

petitioners VBS Distribution, Inc., VBS Home

Shopping, and VBS Television, Inc. As required under

Rule 37.2(a), Dean Chemerinsky timely provided

notice to all parties’ counsel of his intent to file this

brief more than 10 days before its due date.

Petitioners consented to the filing of this brief.

Respondent did not.

Erwin Chemerinsky is the author of a leading

casebook and treatise on federal courts and has

published extensively in this area. His experience also

gives him a unique perspective on how a two-tiered

system of decision-making in the federal courts runs

counter to the interests of litigants, courts, and the

rule of law. Accordingly, this amicus brief addresses

the issue of unpublished appellate opinions, and how

appellate courts’ increasing reliance on them have

created a second tier of decisions, less susceptible to

review, and disproportionately affecting the most

vulnerable litigants. Those litigants are also the least

able to navigate the secret world of unpublished

decisions, many of which are accessible only through

expensive databases, and some of which are not

accessible at all.

Because this brief provides empirical information

about the use of those decisions and addresses the

rule-of-law concerns that their abuse can raise,

ii

Amicus believes that it may be helpful to the Court as

it considers the pending petition for certiorari. For

these reasons, the Court should grant this motion for

leave to file a brief as amicus curiae.

Respectfully submitted,

W. Scott Cameron

Matthew V.H. Noller

KING & SPALDING LLP

621 Capitol Mall

Suite 1500

Sacramento, CA 95814

(916) 321-4800

scameron@kslaw.com

mnoller@kslaw.com

Anne M. Voigts

Counsel of Record

KING & SPALDING LLP

601 South California Ave.

Suite 100

Palo Alto, CA 94304

(650) 422-6700

avoigts@kslaw.com

Jill R. Carvalho

KING & SPALDING LLP

500 W. 2nd Street

Suite 1800

Austin, TX 78701

(512) 457-2021

jcarvalho@kslaw.com

Counsel for Amicus Curiae

September 24, 2020

iii

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF IN

SUPPORT OF THE PETITION ............................... i

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICUS CURIAE............................ 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ................................. 1

ARGUMENT ............................................................... 4

I.

The misuse of unpublished decisions

undermines predictability in the law ................. 4

II. The misuse of unpublished decisions

disproportionately harms vulnerable and

underprivileged litigants................................... 11

III. This Court should impose reasonable limits

on the issuance of unpublished opinions .......... 13

CONCLUSION ......................................................... 16

iv

TABLE OF AUTHORITIES

Cases

Calderon v. Thompson,

523 U.S. 538 (1998)................................................ 14

Collins v. Pond Creek Mining Co.,

468 F.3d 213 (4th Cir. 2006).................................... 5

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926).................................................. 4

Cty. of L.A. v. Kling,

474 U.S. 936 (1985).................................................. 7

DeLeon v. Abbott,

687 Fed. Appx. 340 (5th Cir. 2017) ......................... 9

Hague v. Univ. of Tex. Health Sci. Ctr.

at San Antonio,

560 Fed. Appx. 328 (5th Cir. 2014) ......................... 9

Kimble v. Marvel Entm’t, LLC,

576 U.S. 446 (2015).............................................. 4, 9

Knape v. Berryhill,

734 Fed. Appx. 500 (9th Cir. 2018) ......................... 8

Nat’l Classification Comm. v. United States,

765 F.2d 164 (D.C. Cir. 1985) .............................. 7, 8

Plumley v. Austin,

135 S. Ct. 828 (2015)................................................ 8

United States v. Davis,

139 S. Ct. 2319 (2019).............................................. 4

United States v. Edge Broad. Co.,

509 U.S. 418 (1993)................................................ 14

United States v. Gonzalez-Gomez,

No. 93-2663,

1994 WL 102134 (7th Cir. Mar. 28, 1994) .............. 9

v

United States v. Mann,

552 Fed. Appx. 464 (6th Cir. 2014) ......................... 9

United States v. Rivera-Sanchez,

222 F.3d 1057 (9th Cir. 2000).................................. 6

United States v. Sanford,

476 F.3d 391 (6th Cir. 2007).................................... 5

Williams v. Dallas Area Rapid Transit,

256 F.3d 260 (5th Cir. 2001).................................... 6

Wilson v. Layne,

141 F.3d 111 (4th Cir. 1998).................................. 10

Wilson v. Layne,

526 U.S. 603 (1999)................................................ 11

Statute & Rules

28 U.S.C. § 2072(a) ................................................... 14

Fed. R. App. P. 32.1 .................................................... 5

1st Cir. L.R. 32.1.0...................................................... 5

2d Cir. L.R. 32.1.1....................................................... 5

3d Cir. I.O.P. 5.1 ......................................................... 5

3d Cir. I.O.P. 5.2 ......................................................... 5

3d Cir. I.O.P. 5.3 ......................................................... 5

5th Cir. L.R. 47.5.4 ..................................................... 5

7th Cir. L.R. 32.1(b) .................................................... 5

8th Cir. L.R. 32.1A...................................................... 5

9th Cir. L.R. 36-2 ...................................................... 11

9th Cir. L.R. 36-3(a).................................................... 5

10th Cir. L.R. 32.1 ...................................................... 5

11th Cir. L.R. 36-5 ...................................................... 5

D.C. Cir. L.R. 36(e)(2) ................................................. 5

vi

Other Authorities

Admin. Office of the U.S. Courts,

U.S. Court of Appeals Judicial Business

(2019) ........................................................................ 5

Martha J. Dragich,

Will the Federal Courts of Appeals Perish if

They Publish? Or Does the Declining Use of

Opinions to Explain and Justify Judicial

Decisions Pose A Greater Threat?,

44 Am. U. L. Rev. 757 (1995)......................... passim

Michael Kagan, Rebecca Gill,

& Fatma Marouf,

Invisible Adjudication in the U.S. Courts of

Appeals, 106 Geo. L.J. 683 (2018) ......................... 12

Merritt E. McAlister,

“Downright Indifference”:

Examining Unpublished Decisions

in the Federal Courts of Appeals,

118 Mich. L. Rev. 533 (2020) ......................... passim

Merritt E. McAlister,

Missing Decisions,

169 U. Pa. L. Rev. (forthcoming 2021) ........ 7, 11, 12

William L. Reynolds & William M. Richman,

The Non-Precedential Precedent—Limited

Publication and No-Citation Rules in the

United States Courts of Appeals,

78 Colum. L. Rev. 1167 (1978) .............................. 10

William M. Richman & William L. Reynolds,

Injustice on Appeal: The United States

Courts of Appeals in Crisis (2013) ........................ 13

vii

Antonin Scalia,

The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) ...................... passim

Tom R. Tyler,

Procedural Justice, Legitimacy,

and the Effective Rule of Law,

30 Crime & Just. 283 (2003) ................................. 13

Tom R. Tyler,

Why People Obey the Law (1990) ........................... 3

Patricia M. Wald,

The Problem with the Courts:

Black-Robed Bureaucracy, or

Collegiality Under Challenge?,

42 Md. L. Rev. 766 (1983) .............................. passim

Patricia M. Wald,

The Rhetoric of Results and the Results of

Rhetoric: Judicial Writings,

62 U. Chi. L. Rev. 1371 (1995) ............................ 8, 9

INTEREST OF AMICUS CURIAE 1

Erwin Chemerinsky is the Dean of Berkeley Law

at the University of California, where he serves on

faculty as the Jesse H. Choper Distinguished

Professor of Law. He is the author of a leading

casebook and treatise on federal courts and has

published extensively in this area. As such, he has a

particular interest in how federal courts issue their

decisions, the role of precedent, and the importance of

a single system of justice to the rule of law. His

experience also gives him a unique perspective on how

a two-tiered system of decision-making in the federal

courts runs counter to the interests of litigants, courts,

and the rule of law.

INTRODUCTION AND

SUMMARY OF ARGUMENT

As Justice Scalia once explained, “the Rule of

Law” demands “predictability.” Antonin Scalia, The

Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175,

1179 (1989). “Rudimentary justice requires that those

subject to the law must have the means of knowing

what it prescribes.” Id. But federal appellate courts’

growing

reliance

on

unpublished

decisions

“challenge[s] fundamental assumptions of lawyers

and judges: that the law is findable, that the

1 Counsel for all parties received notice of amicus’s intent to file

this brief 10 days before its due date. Because respondent did not

consent, amicus has submitted a motion for leave to file this brief.

Pursuant to Supreme Court Rule 37.6, amicus curiae states that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

precedential value of a decision is readily

ascertainable, and that past decisions provide

sufficient information to guide citizens, attorneys, and

judges in the future.” Martha J. Dragich, Will the

Federal Courts of Appeals Perish if They Publish? Or

Does the Declining Use of Opinions to Explain and

Justify Judicial Decisions Pose A Greater Threat?, 44

Am. U. L. Rev. 757, 760 (1995).

Take that last point—unpublished decisions, as

currently (and increasingly) used by the courts of

appeals, undermine predictability in several ways.

Though unpublished decisions are technically not

precedential, litigants may cite them, and courts rely

on them as persuasive authority. This leaves litigants

no way to determine whether or not they can rely on

an unpublished decision to predict future results.

Dragich, Will the Federal Courts of Appeals Perish, at

791–800. That is particularly true when multiple

unpublished decisions from a single appellate court

provide different answers to the same legal question.

Id. Even worse, courts of appeals can—as the Ninth

Circuit apparently did in this case—use unpublished

decisions to ignore or superficially distinguish the

court’s own binding precedent. See Pet. 16–20;

Pet. App. 10–13 (Bybee, J., dissenting). As a result, no

litigant can ever be confident that its appeal will be

decided according to the existing rules. And if it isn’t,

the decision’s unpublished status protects it from

further review in the court of appeals or this Court.

This unpredictability burdens all litigants, but it

falls most harshly on the most vulnerable members of

society.

See generally Merritt E. McAlister,

“Downright Indifference”: Examining Unpublished

3

Decisions in the Federal Courts of Appeals, 118 Mich.

L. Rev. 533 (2020).

The courts of appeals

disproportionately use unpublished decisions to reject

the claims of immigrants, prisoners, and other

litigants who can’t afford sophisticated counsel. Id. at

548.

These litigants are also less able than

represented parties to locate and research the

unpublished decisions that may apply to their claims.

Subjecting indigent litigants to such “second-class

treatment,” id. at 538, undermines the “appearance of

equal treatment” essential to a legitimate “system of

justice,” Scalia, Rule of Law, at 1178.

The courts of appeals’ misuse of unpublished

decisions thus impairs the legitimacy of the entire

legal system. If the public does not believe that the

law is predictable and applied even-handedly, they

“view the authorities as less legitimate and as a

consequence obey the law less frequently in their

everyday lives.” McAlister, “Downright Indifference,”

at 566 (quoting Tom R. Tyler, Why People Obey the

Law 108 (1990)); accord Scalia, Rule of Law, at 1178.

Published opinions, on the other hand, “lend

[decisions] legitimacy, permit public evaluation, and

impose a discipline on judges.” Patricia M. Wald, The

Problem with the Courts: Black-Robed Bureaucracy, or

Collegiality Under Challenge?, 42 Md. L. Rev. 766, 768

(1983). They should be the norm of decisionmaking in

the federal courts of appeals, not the exception they

have become.

The restraints imposed by precedent serve

important societal interests in fairness, efficiency, and

predictability, but the existence of a two-tiered system

of decisionmaking fundamentally undercuts both

4

those restraints and the interests they serve. For

these reasons, the Court should grant certiorari to

impose some discipline on how the courts of appeals

use unpublished decisions. 2

ARGUMENT

I.

The misuse of unpublished decisions

undermines predictability in the law.

Predictability—the public’s ability to anticipate,

with reasonable certainty, what the law prohibits or

permits—“is a needful characteristic of any law

worthy of the name.” Scalia, Rule of Law, at 1179. It

is, indeed, the “first essential of due process,” Connally

v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

“[O]rdinary people” must have “fair warning about

what the law demands of them.” United States v.

Davis, 139 S. Ct. 2319, 2323 (2019).

This

requirement

governs

judicial

decisionmaking through the doctrine of stare decisis.

A “foundation stone of the rule of law,” stare decisis

“promotes the evenhanded, predictable, and

consistent development of legal principles.” Kimble v.

Marvel Entm’t, LLC, 576 U.S. 446, 455 (2015)

(internal quotation marks omitted). If courts were

free to revisit the law anew in each decision, members

of the public could have no confidence in the rules

governing their conduct. And “[a]s laws have become

more numerous, and as people have become

increasingly ready to punish their adversaries in the

courts, we can less and less afford protracted

This brief is limited to the second Question Presented.

Amicus expresses no view on the first Question Presented.

2

5

uncertainty regarding what the law may mean.”

Scalia, Rule of Law, at 1179.

Yet, in the 31 years since Justice Scalia issued

that warning, the federal courts of appeals have relied

more and more on unpublished, nonprecedential

decisions—even as their caseloads have declined.

McAlister, “Downright Indifference,” at 551–54, 561.

Take one example from one circuit: During the first

week in October 2016, the U.S. Court of Appeals for

the Fourth Circuit issued 104 decisions in pending

appeals, 102 of which were “unpublished” dispositions.

Id. at 534. Today, 87% of all federal appellate

decisions are unpublished. Admin. Office of the U.S.

Courts, U.S. Court of Appeals Judicial Business tbl. B12 (2019). 3 Under the rules of every court of appeals,

none of those decisions bind the courts’ future

decisions. 4 That is, nearly 90% of all the federal

appellate decisions in the country tell the public

nothing useful about the meaning of the law.

Correction: less than nothing. Because while

courts need not follow unpublished decisions, they can

choose to do so at their discretion. Fed. R. App. P. 32.1;

McAlister, “Downright Indifference,” at 561. Federal

courts of appeals and district courts routinely cite

unpublished appellate decisions for their persuasive

Available at https://www.uscourts.gov/statistics/table/b-12/

judicial-business/2019/09/30.

3

4 United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007);

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219–20 (4th Cir.

2006); 1st Cir. L.R. 32.1.0; 2d Cir. L.R. 32.1.1; 3d Cir. I.O.P. 5.1,

5.2, 5.3; 5th Cir. L.R. 47.5.4; 7th Cir. L.R. 32.1(b); 8th Cir. L.R.

32.1A; 9th Cir. L.R. 36-3(a); 10th Cir. L.R. 32.1; 11th Cir. L.R. 365 & I.O.P. 6; D.C. Cir. L.R. 36(e)(2).

6

value. 5 Any given unpublished decision, therefore,

might inform future decisions—or it might not.

Indeed, a particular unpublished decision might

inform one future decision, but be ignored, or worse

yet, purposefully not followed, by another. There’s no

way to tell in advance. That is particularly true when

different panels of the same court of appeals issue

conflicting unpublished decisions on the same issue.

See, e.g., United States v. Rivera-Sanchez, 222 F.3d

1057, 1063 (9th Cir. 2000) (identifying “twenty

separate unpublished dispositions” adopting “a total of

three different approaches” to the same question). In

fact, the same court of appeals can even issue

conflicting unpublished dispositions on the same issue

regarding the same entity. Williams v. Dallas Area

Rapid Transit, 256 F.3d 260, 260–61 (5th Cir. 2001)

(Smith, J., dissenting from the denial of rehearing en

banc) (recounting that one panel of the circuit had

ruled, in an unpublished decision, that DART was a

political subdivision of the state of Texas and therefore

immune from suit under the Eleventh Amendment,

while the panel of the case under review ruled, less

than two years later and also in an unpublished

decision, that DART was not a political subdivision of

the state and therefore did not have immunity from

suit).

5 A Westlaw search reveals that in 2020, the federal courts of

appeals have cited cases from the Federal Appendix, West’s

compendium of unpublished appellate decisions, in at least 2,474

different decisions. In that same time period, district courts have

cited the Federal Appendix in more than 10,000 decisions.

(Westlaw can only display 10,000 search results at a time.)

7

As a result, litigants and attorneys who want to

predict the outcome of their cases must research

unpublished decisions, while having no clue which (if

any) of those decisions could influence the result. 6

See Cty. of L.A. v. Kling, 474 U.S. 936, 938 & n.1 (1985)

(Stevens, J., dissenting from summary reversal)

(criticizing nonpublication as “spawning a body of

secret law”). The effect of that unpredictability isn’t

limited to actual litigants—those who want to avoid

ending up in litigation cannot predict which course of

conduct is right when courts have endorsed multiple

approaches in unpublished decisions. And those who

want to bring litigation may have difficulty assessing

the merits of doing so.

That lack of precedential value and predictability

leads to forced inefficiency. Courts and parties end up

having to relitigate issues over and over again, like an

Article III version of the movie Groundhog Day.

See, e.g., Nat’l Classification Comm. v. United States,

765 F.2d 164, 174 (D.C. Cir. 1985) (Wald, J., separate

statement) (noting that had an earlier decision been

published, “the present appeal might well have been

entirely avoided. . . . Instead, both the parties and this

6 Not to mention that nearly 30% of federal appellate decisions

are unavailable through any commercial legal database. Merritt

E. McAlister, Missing Decisions, 169 U. Pa. L. Rev. (forthcoming

2021), manuscript at 19. These phantom decisions have all the

value of the unreadable columns on which Emperor Nero

“post[ed] his edicts.” Scalia, Rule of Law, at 1179; see McAlister,

Missing Decisions, at 59 (“[T]he existence of missing decisions

frustrates the reasons why precedential constraint is desirable:

fairness, efficiency, and predictability.”).

8

court have been put through the time and expense of

a fruitless second appeal”).

While the courts’ overreliance on unpublished

decisions has led to a large body of unpublished law on

which no litigant can confidently rely, the overuse of

those decisions also means that litigants cannot rely

on the increasingly small proportion of precedential

published opinions. As Judge Wald reported firsthand 25 years ago, unpublished decisions “allow[] for

deviousness and abuse.” Patricia M. Wald, The

Rhetoric of Results and the Results of Rhetoric:

Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374

(1995). Judges might use unpublished opinions to

“sweep troublesome issues under the rug” and “avoid

a time-consuming public debate about what law

controls.” Id.; see also Nat’l Classification Comm., 765

F.2d at 173 n.2 (separate statement of Wald, J.)

(unpublished decisions “increase the risk of

nonuniformity” and “allow difficult issues to be swept

under the carpet”); Plumley v. Austin, 135 S. Ct. 828,

831 (2015) (Thomas, J., dissenting from denial of

certiorari) (criticizing court of appeals for not

publishing decision “to avoid creating binding law”).

Even worse, unpublished decisions might contradict

or sidestep a court’s own binding precedent. Knape v.

Berryhill, 734 Fed. Appx. 500, 504 (9th Cir. 2018)

(Ikuta, J., dissenting) (noting that binding precedent

established that “the ALJ must resolve whether

Knape’s testimony is credible in light of the medical

evidence in the record,” and faulting the majority after

it “ignores this precedent, determines on its own that

Knape’s testimony is credible, and concludes that the

record

unequivocally

supports

a

disability

determination”); see also DeLeon v. Abbott, 687 Fed.

9

Appx. 340, 348 (5th Cir. 2017) (Elrod, J., dissenting)

(faulting the majority for ignoring binding precedent);

Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio,

560 Fed. Appx. 328, 341 (5th Cir. 2014) (Dennis, J.,

dissenting in part) (same); United States v. Mann, 552

Fed. Appx. 464, 471 (6th Cir. 2014) (Cook, J.,

dissenting) (same); United States v. Gonzalez-Gomez,

No. 93-2663, 1994 WL 102134, at *5 (7th Cir. Mar. 28,

1994) (Ripple, J., dissenting) (same); Dragich, Will the

Federal Courts of Appeals Perish, at 786. According to

the dissent, that is precisely what happened here.

Pet. App. 10–13 (Bybee, J., dissenting).

But if unpublished decisions can disregard

published opinions, then the public cannot completely

rely on past precedents to predict future results. This

is contrary to all the values stare decisis is meant to

serve. It obstructs “the evenhanded, predictable, and

consistent development of legal principles,” precludes

“reliance on judicial decisions,” and encourages

“endless relitigation” of “settled precedents.” Kimble,

576 U.S. at 455 (cleaned up). Thus, while unpublished

decisions may be more efficient for appellate courts in

the short term, in the long term they are not. And

because unpublished decisions can result in the

proliferation of different approaches to the same

question and thus in delayed or repetitive resolution

of the underlying issues, a mechanism adopted in the

interests of efficiency can make judges’ jobs harder,

not easier.

This lack of predictability and stability is

intolerable in the courts of appeals, which have the

final word in the vast majority of cases. Wald,

Rhetoric, at 1375–76; Dragich, Will the Federal Courts

10

of Appeals Perish, at 766–68. This Court is able to

review only a tiny fraction of all the cases decided by

the courts of appeals, so it must be selective in the

cases it chooses. Scalia, Rule of Law, at 1178–79.

Unpublished cases are especially unlikely to be

reviewed, since they usually don’t provide sufficient

explanation to “fault [their] reasoning or detect [their]

error[s].” McAlister, “Downright Indifference,” at 585;

see Dragich, Will the Federal Courts of Appeals Perish,

at 785 (“[C]ases without published opinions are less

likely to be reviewed by the Supreme Court.”). That’s

not just the case with unpublished decisions that don’t

explain their reasoning, but also with those that do:

because unpublished decisions are viewed as less

significant and incapable of creating an actual conflict

in the law, they are less likely to be reviewed either by

an en banc court or by this Court. William L. Reynolds

& William M. Richman, The Non-Precedential

Precedent—Limited Publication and No-Citation

Rules in the United States Courts of Appeals, 78

Colum. L. Rev. 1167, 1203 (1978) (explaining reasons

why unpublished opinions evade review by courts and

commentators alike).

That’s

particularly

problematic

because

unpublished decisions may be more prone to error—or

to less than careful language that can introduce

confusion into even otherwise clear-cut law. Indeed,

“it is well known that judges may put considerably less

effort into opinions that they do not intend to publish.

Because these opinions will not be binding precedent

in any court, a judge may be less careful about his

legal analysis, especially when dealing with a novel

issue of law.” Wilson v. Layne, 141 F.3d 111, 124 n.6

(4th Cir. 1998) (en banc) (Murnaghan, J., dissenting),

11

aff’d, 526 U.S. 603 (1999). And while unpublished

decisions should never be issued where the case deals

with a novel issue of law, they sometimes are. See 9th

Cir. L.R. 36-2, Criteria for Publication (requiring that

“[a] written, reasoned disposition shall be designated

as an OPINION [and therefore published] if it . . .

[e]stablishes, alters, modifies or clarifies a rule of

federal law”) (emphasis added).

In short, the excessive use of unpublished

decisions creates a “secret” body of law that

undermines key values of stability, certainty,

predictability, consistency, and fidelity to authority.

Dragich, Will the Federal Courts of Appeals Perish, at

802. That two-tiered system in turn creates incentives

to issue unpublished decisions, kicking the proverbial

can down the road. And, as set forth below, that

disproportionately affects the least powerful and most

disadvantaged litigants.

II. The misuse of unpublished decisions

disproportionately harms vulnerable and

underprivileged litigants.

The unpredictability caused by unpublished

opinions burdens the entire legal system. But it does

not burden all litigants equally. Its harms fall

disproportionately on the most vulnerable litigants:

immigrants, prisoners, and other indigent parties who

can’t afford sophisticated counsel. See generally

McAlister, “Downright Indifference.” This creates “a

two-tier system of appellate justice, which benefits the

haves at the sake of the have-nots.” McAlister,

Missing Decisions, at 61.

The first disparity is one of resources. As

explained above, effective advocacy requires litigants

12

and their lawyers to locate and pore over not only

published opinions, but also a court’s unpublished

decisions, some of which can only be accessed at the

litigants’ expense, and others of which cannot be

accessed at all. Indigent litigants in particular lack

the resources to access most unpublished decisions,

which are stored in expensive commercial databases,

Wald, Problem with the Courts, at 783 n.41, or

“lock[ed] . . . behind PACER’s paywall,” McAlister,

Missing Decisions, at 23. Others are not available at

all. 7 As a result, the vast majority of appellate courts’

decisions are unavailable to an unrepresented

litigant.

The second disparity is one of judicial attention.

Federal courts of appeals overwhelmingly use

unpublished decisions to reject appeals from pro se

litigants. See McAlister, “Downright Indifference,” at

554–61. Indeed, the rise of unpublished decisions can

be traced to “judicial concern about significantly

increased appeals in both civil rights and pro se

prisoner cases.” Id. at 547–48 (internal quotation

marks omitted). Pro se litigants too often receive

“second-class treatment” through “lightly reasoned

unpublished decisions.” Id. at 538. Meanwhile, the

“elite”—whose “‘important’ cases [are] brought by

‘serious counsel’”—receive “first-tier justice” rendered

in “reasoned, published decisions.” Id. at 547 (quoting

William M. Richman & William L. Reynolds, Injustice

7 The problem is perhaps most acute for immigrants.

A

significant percentage of unpublished immigration decisions are

not available through commercial databases. Michael Kagan,

Rebecca Gill, & Fatma Marouf, Invisible Adjudication in the U.S.

Courts of Appeals, 106 Geo. L.J. 683, 698–99 (2018).

13

on Appeal: The United States Courts of Appeals in

Crisis 119 (2013)).

This two-tier system of justice threatens the

entire enterprise’s legitimacy. Id. at 541, 563–66. As

Justice Scalia explained, “if the system of justice is to

be respected,” it must create at least “the appearance

of equal treatment.” Scalia, Rule of Law, at 1178. But

when courts habitually rebuff pro se litigants without

explaining their decisions, litigants and the public lose

confidence that courts “are neutral and unbiased and

make their decisions using objective indicators.”

McAlister, “Downright Indifference,” at 564 (quoting

Tom R. Tyler, Procedural Justice, Legitimacy, and the

Effective Rule of Law, 30 Crime & Just. 283, 298

(2003)); see Wald, Problem with the Courts, at 783 n.41

(“[U]npublished opinions . . . limit the public’s ability

to evaluate the correctness of judicial actions and give

rise to uncertainties about the integrity of the

courts.”). “[T]hey then view the authorities as less

legitimate and as a consequence obey the law less

frequently in their everyday lives.”

McAlister,

“Downright Indifference,” at 566 (quoting Tyler, Why

People Obey the Law 108).

III. This Court should impose reasonable limits

on the issuance of unpublished opinions.

Because individual unpublished decisions are

often “unreviewable by the Supreme Court,”

McAlister, “Downright Indifference,” at 585, the most

effective way for this Court to prevent abuse of the

nonpublication practice is by imposing two common

sense limits on the practice itself based on the

substantial due process, equal protection, and Article

III concerns it raises. The Court may impose those

14

limits to remedy those constitutional flaws, or simply

as an exercise of its supervisory powers. Indeed,

Congress has endowed the Court with the power to do

just that. 28 U.S.C. § 2072(a) (providing that “[t]he

Supreme Court shall have the power to prescribe

general rules of practice and procedure” for the “courts

of appeals”). And the Court has in the past policed

lower courts’ compliance with their procedural rules.

See Calderon v. Thompson, 523 U.S. 538, 551–52

(1998) (faulting the Ninth Circuit for abusing its

discretion in recalling its mandate outside the

prescribed time).

First, courts of appeals should only issue

unpublished decisions in appeals that are genuinely,

no-doubt-about-it resolved by binding precedent. Put

another way, unpublished decisions, even in pro se

cases, should be limited to appeals “so cut-and-dried

that they genuinely do not need more than a few

paragraphs explanation.” Wald, Problem with the

Courts, at 783. Second, courts should limit the use of

unpublished decisions to cases where the court is

unanimous; if a judge dissents, the decision should be

published.

See id. at 782 (proposing these

restrictions); United States v. Edge Broad. Co., 509

U.S. 418, 425 n.3 (1993) (criticizing court of appeals

for not publishing divided “judgment that an Act of

Congress was unconstitutional”).

These two rules would go a long way toward

restoring predictability to the federal appellate

system, first, by ensuring that any proposition for

which an unpublished decision could be cited also

appears in a published opinion that can be cited

instead, and second, by making it more likely for

15

judges to issue unpublished decisions only when they

are in line with binding precedent and don’t either

address a novel question of law or depart from

established answers to questions courts have already

addressed. In all other cases, appellate courts should

explain their decisions in published opinions, which

“contain reasoned explanations . . . to lend them

legitimacy, permit public evaluation, and impose a

discipline on judges.” Wald, Problem with the Courts,

at 768.

Even if this Court is unwilling to consider the

broader principles, it should at the very least police

appellate courts’ compliance with their own rules

governing unpublished decisions. Here, for example,

the decision below was not unanimous, and it is far

from clear that the Ninth Circuit panel faithfully

applied the court’s precedent. Indeed, the decision not

to publish has the effect of “avoid[ing] calling attention

to the fact that its decision conflict[ed] with the

holding of a prior panel”—and minimizing the

importance of resolving that conflict on further review.

Dragich, Will the Federal Courts of Appeals Perish, at

786. Given those flaws, both of which would be cured

by a decision along the lines proposed in this brief, the

Court should grant certiorari.

16

CONCLUSION

The Court should grant the petition for certiorari

with respect to the second Question Presented.

Respectfully submitted,

W. Scott Cameron

Matthew V.H. Noller

KING & SPALDING LLP

621 Capitol Mall

Suite 1500

Sacramento, CA 95814

(916) 321-4800

scameron@kslaw.com

mnoller@kslaw.com

Anne M. Voigts

Counsel of Record

KING & SPALDING LLP

601 South California Ave.

Suite 100

Palo Alto, CA 94304

(650) 422-6700

avoigts@kslaw.com

Jill R. Carvalho

KING & SPALDING LLP

500 W. 2nd Street

Suite 1800

Austin, TX 78701

(512) 457-2021

jcarvalho@kslaw.com

Counsel for Amicus Curiae

September 24, 2020